Prosecuting drug-addicted pregnant women

Should pregnant women struggling with addiction to illegal drugs be criminally prosecuted for child neglect and endangerment? Since the 1992 sentencing of Cornelia Whitner to eight years in jail-when her son Tevin, although born healthy, tested positive for cocaine at the time of his birth-there has been heated debates among legal scholars and women's rights activists regarding such incarceration. In the Whitner case, the South Carolina Supreme Court held that a viable unborn child is a "person" and that pregnant women who abuse drugs are endangering their babies in the womb. It may seem obvious that women are morally responsible for endangering their unborn child by abusing illegal drugs, but is it criminal?

Scholars who say that drug-addicted pregnant women should not be prosecuted for child endangerment and neglect argue some combination of the following points.

First, they argue that in America there is no legal consensus that an unborn baby is a person and therefore does not have legal standing as a "child." If an unborn child is not a person, a drug using or addicted pregnant woman cannot be legally charged with child endangerment. Denying the personhood of an unborn baby has been the most effective way of protecting these women from prosecution. But many states are inconsistent with their laws because an unborn child does have legal standing with respect to fetal homicide-for example, in the case of a drunk driver being charged for manslaughter in a car accident where a pregnant woman's unborn child dies.

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Second, scholars argue that having a drug addiction is not illegal, so to penalize women for something they have no control over criminalizes women who are suffering from painful struggles. Even if drug-abusing women are putting the viability of their unborn baby at risk, her addiction is not necessarily criminal. What other addictions do we prosecute?

Third, they argue that these laws tend to be racist because black women are 10 times more likely to be reported for using drugs while pregnant than white women. Even though the drug use rate of white women compared to black women is statistically negligible, black women are more likely to be criminally prosecuted. Such laws, then, they say, unfairly target women of color.

Fourth, scholars point out that it has not been proven that putting women in jail and separating them from their children is necessarily better than other options such as government-funded, mandatory drug rehabilitation. Even worse, some argue, the knowledge of potential prosecution could introduce incentives for women to abort their babies to avoid going to jail.

Fifth, they ask if we should prosecute pregnant women for other types of negligence. That is, should we prosecute pregnant women for smoking, drinking alcohol, eating poorly, reckless driving, etc.? Why isolate the use of illegal drugs and not prosecute women who smoke cigarettes when smoking tobacco is far more potentially dangerous to unborn children than cocaine. To complicate the issue further, the data that illicit drug use affects a pregnancy's outcome and fetal and child development is inconclusive. In fact, drug use tends to make no difference in the health of a child after birth.

In the end, women who abuse drugs during pregnancy may violate moral norms but said violations may not need to be criminal. If you were elected to your state legislature, how would you argue for or against a law proposing criminal penalties for drug-abusing pregnant women? Could there be better alternatives than jail? Is this even a good use of the law?

Anthony Bradley

Anthony is associate professor of theology and ethics at The King's College in New York and serves as a research fellow at the Acton Institute for the Study of Religion and Liberty. He is author of Liberating Black Theology. Follow Anthony on Twitter @drantbradley.